Making sure the Gosnell case never happens again: As I See It

Now that a guilty verdict and sentence has been rendered in the case against Philadelphia abortion doctor Kermit Gosnell, it is time to ensure it never happens again by examining the role played by the Pennsylvania Medical Board, its prosecutors and how licensure cases are adjudicated in Pennsylvania.

Simply put, Pennsylvania Medical Board members never had the opportunity to adjudicate Gosnell because board prosecutors exercised prosecutorial discretion and closed a number of complaints that were filed against Gosnell over the years. In fact, the medical board members and I were prohibited by law from even knowing those complaints were even filed.

This separation of the board attorney’s right to decide who to prosecute on the one hand, from the medical board’s duty to judge a physician is an important rule of law established by a 1992 Pennsylvania Supreme Court case: Lyness v. State Board of Medicine. That separation of powers was honored and never breached during my watch.

Therein lies the huge regret in this tragedy: If the prosecutors had brought the Gosnell complaints before the medical board, I am confident that the board would have taken appropriate action against him based on its disciplinary track record from 2002 to 2011.

But, Pennsylvania law prohibits even questioning the board prosecutors for their failure to “vigorously” bring a case against Gosnell to the medical board because they exercised their authority under “prosecutorial discretion”. This is also a well established principle in our state that applies to the medical board and all of the state’s 28 other licensure boards. It is the same final say that each district attorney in Pennsylvania has on every criminal complaint that is filed by citizens and police officers alike.

What should be done in light of the Gosnell tragedy?

Pennsylvania Medical Board members still shouldn’t decide who to investigate and who to prosecute otherwise the state board would turn into a “kangaroo court”. It would be akin to permitting the trial judge in the Gosnell case to help the district attorney prosecute Gosnell. That would be wrong in the criminal case and wrong in a disciplinary action as well, compromising the board’s right to rule on issues including the right to throw out charges that have not been proven after hearing the evidence in the case.

So, even though licensure board members in other states make the decision on which physicians to investigate and prosecute, Pennsylvania shouldn’t repeal or limit the Lyness decision because honorable and hard working licensees, who may be unjustly prosecuted or who may have a reasonable defense for their conduct are entitled to a fair hearing before an independent licensure broad. That would be lost without Lyness.

Therefore, the most effective way to insure that a Gosnell tragedy doesn’t happen again is to inject some “prosecutorial vigor” into the investigation of licensure board matters and legislatively move board investigators and prosecutors into the state Attorney General’s Office.

This would bring licensure board investigations under the purview of a fully fledged law enforcement agency and law enforcement could use licensure board cases to bolster any criminal investigations it may have against board licensees.

In the end, it would strengthen both disciplinary cases and criminal prosecutions and salvage something decent from the Gosnell tragedy.

Basil L. Merenda served as Secretary of State from June 2010 to January 2011. He was commissioner of the Pennsylvania Bureau of Professional and Occupational Affairs and a member of the Pennsylvania Medical Board from 2004 to 2010.